Following a disciplinary procedure can be like sticking
to a diet – you know it will work, but it's a bit
painful, and it seems ages before you have a result. Sticking with
the process though, is worth it.
Dealing with employees who are not performing or who have
behaved badly can be among the most challenging situations managers
and HR personnel have to face.
Disciplinary procedures are the tool kit you need to manage
these often difficult and emotional situations. When properly
constructed, they set out a step-by-step plan for dealing with poor
performance and employee misconduct.
Importantly, they help managers to maintain control, stay
objective and deal with the situation effectively.
NATURAL JUSTICE IS PARAMOUNT
Procedures help to ensure that a disciplinary process is fair
and that natural justice takes place. Employees must be provided
with a proper opportunity to respond to criticisms and allegations.
This is crucial if a disciplinary decision is to stand up to
scrutiny in a tribunal or court.
If a business has a disciplinary procedure, it should be
followed. However, the overarching principle of natural justice and
the right to respond and be heard is paramount.
Your procedures will likely provide for this, but even where
there is no procedure in place, employers must make sure that they
follow this primary principle.
A GOOD RESULT REQUIRES PATIENCE
In a recent decision in the Queensland Industrial Relations
Commission, Townsville City Council successfully defended an unfair
dismissal claim made by a labourer who was dismissed after three
separate incidents of temper-related misconduct.
The first two resulted in written warnings (including one final
warning). The employee's final mistake was punching the
dashboard of a moving council vehicle from the back seat - because
it was a hot day and he was angry that the front seat passenger had
used the dashboard control to wind up the employee's back seat
The Council had followed their disciplinary procedure with care
on all three occasions with the employee.
The Commission upheld the Council's decision to dismiss the
employee, finding it was fair and reasonable. The Commission also
noted that its own opinion about a disciplinary decision (if it had
a different one) was irrelevant as long as the decision had been
The employee's CFMEU representative challenged not only the
dismissal, but also the two previous warnings the employee had
Deputy President Kaufman was emphatic in saying that the
circumstances concerning those warnings were not relevant to
whether the dismissal was harsh, unjust or unreasonable; only the
fact that two prior warnings had been issued was relevant. The
dismissal viewed on its own and in the context of those prior
warnings was justified.1
LACK OF PATIENCE CAN LEAD TO REGRET
Recently in South Australia, a team leader at a town library was
found to have been unfairly dismissed even though his actions
amounted to serious and wilful misconduct.
The fatal flaw in the employer's process was that the time
the employee had to provide a written response to the allegations
was inadequate. This was sufficient to make the dismissal
The employee was dismissed for sending other employees text
messages insulting management as being "narcissists and
egotistical" and claiming management was "plotting (his)
demise". The employee was notified of the allegations, told to
provide a written response and sacked (without notice) - all within
These actions were found to be deliberate and wilful misconduct
and a breach of the employer's social media policy.
However, impatience was the employer's downfall.
Commissioner McMahon held that even though the employee had not
asked for more time, the 24-hour period was too short for the
employee to properly respond to the allegations.2
KNOW YOUR PROCEDURES
While these two decisions were made under state industrial
legislation, similar principles apply when dealing with the
discipline and processes leading to dismissal of employees covered
by the Fair Work Act 2009 (Cth).
The golden rule is: know your disciplinary procedures before
acting and keep natural justice front of mind. You can be sure that
employees who are being disciplined, and their representatives,
will be doing exactly that.
Procedures should be concise, clear and fair. Consider revamping
your procedure if it is too complicated or no longer suits your
1McDowell v Townsville City Council
 QIRC 163 (26 August 2015).
2Winship v Corporation of the Town of
Walkerville  SAIRComm 9 (18 August 2015).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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